{"id":44858,"date":"2011-02-02T00:00:00","date_gmt":"2011-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-ganeshwari-vs-n-thangaraj-on-2-february-2011"},"modified":"2016-08-26T03:37:29","modified_gmt":"2016-08-25T22:07:29","slug":"m-ganeshwari-vs-n-thangaraj-on-2-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-ganeshwari-vs-n-thangaraj-on-2-february-2011","title":{"rendered":"M.Ganeshwari vs N.Thangaraj on 2 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Ganeshwari vs N.Thangaraj on 2 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 02\/02\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE T.MATHIVANAN\n\t\t\t\t\t\t\t\t\t\nC.M.A.(MD)No.732 of 2010\n\n1.M.Ganeshwari\n2.M.Maheswari (Minor)\n3.Prashand (Minor)\n4.Madhusuthanan (Minor)\n5.Karuppayeeammal\n6.Mayandi Thevar\t\t\t \t     \t.. Appellants\/Claimants\n(The minor petitioners 2 to 4 are\nrepresented through their mother,\nnext friend and guardian Tmt.M.Ganeswari,\nthe 1st petitioner herein)\n\nVs\n\n1.N.Thangaraj\n  (Ex-parte in Lower Court)\n\n2.National Insurance Company Limited,\n  Rep. by its Divisional Manager,\n  Having Office at North Veli Street,\n  Madurai - 625 001.    \t\t     \t\t.. Respondents\/Respondents\n\nPrayer\n\nAppeal filed under Section 173 of the Motor Vehicles Act against the\ndismissal of their claim in M.C.O.P.No.1529 of 2003, dated on 05.02.2008 by the\nlearned I Additional District Judge, Madurai.\n\n!For Appellant\t... Mr.K.Murugesan\n^For R - 2\t... Ms.P.Malini\n\n:JUDGMENT\n<\/pre>\n
\tThis memorandum of Civil Miscellaneous Appeal is directed against the
\norder of dismissal dated 05.02.2008 and made in M.C.O.P.No.1529 of 2003, on the
\nfile of the Motor Accident Claims Tribunal (First Additional District Judge),
\nMadurai.\n<\/p>\n
\t2.The facts which are absolutely necessary for the disposal of this Civil
\nMiscellaneous Appeal are re-capitulated as under:\n<\/p>\n
\tThat on 11.08.2001, at about 03.30 p.m., near Sundar Nagar Vilakku,
\nMadurai-Theni junction at Nagamalaipudukottai, the deceased Mayan was hit by a
\ntwo-wheeler, bearing Registration No.TMH-2864 driven by the first respondent
\nherein from the opposite direction, when the deceased was proceeding in his
\nMotor-cycle bearing Registration No.TN-58-E-7723 and as a result of which the
\ndeceased had succumbed to injuries while he was on treatment. Hence, the
\nappellants being the wife, children and the parents of the deceased had filed a
\nclaim petition in M.C.O.P.No.1529 of 2003 on the file of the Motor Accident
\nClaims Tribunal, Madurai claiming a sum of Rs.8,00,000\/-.\n<\/p>\n
\t3.The first respondent being the owner of the Motor-cycle bearing
\nRegistration No.TMH-2854 had not contested the claim petition, as he remained
\nex-parte. On the other hand, the second respondent\/Insurer of the said vehicle
\nalone had contested the claim petition on various grounds.\n<\/p>\n
\t4.The first appellant had examined herself as P.W.1 and one A.Perumal, who
\nis said to be the eye-witness for the occurrence was examined as P.W.2. During
\nthe course of their examination Exs.A1 to A7 were marked. On the other hand,
\nneither oral nor documentary evidence was adduced on the part of the contested
\nsecond respondent.\n<\/p>\n
\t5.On appreciation of the evidence and on considering the relevant
\nmaterials available on record, the Motor Accident Claims Tribunal had found that
\nthe accident was not satisfactorily established involving the two-wheeler
\nbearing Registration No.TM-H-2854 belonging to the first respondent by producing
\nthe crime records Viz., First Information Report, Accident Register,
\nInvestigation Report. Ultimately, the Tribunal had proceeded to dismiss the
\nclaim petition. Hence, this appeal.\n<\/p>\n
\t6.Heard both sides.\n<\/p>\n
\t7.The learned counsel appearing for the appellants have submitted that
\nindeed P.W.1, who is the first appellant herein has not witnessed the occurrence
\ndirectly. P.W.2, one Perumal had deposed that he had witnessed the occurrence
\nand he had also given a vivid account about the manner in which the occurrence
\nwas taken place.\n<\/p>\n
\t8.The learned counsel for the appellants has also submitted that P.W.2,
\nPerumal in his proof affidavit had stated that on 11.08.2001 at about 03.30
\np.m., when he was waiting for catching the bus at Sundar Nagar Bus-stop located
\non the southern side of the Madurai-Theni Main Road, the deceased Mayan was
\nfound driving his TVS Suzuki Motor-cycle bearing Registration No.TN-58-E-7723 on
\nthe left side of the road from East towards West. When he was nearing Sundar
\nNagar, a Motor-Cycle bearing Registration No.TM-H-2854 driven by its rider from
\nthe opposite direction in a rash and negligent manner without minding the on-
\ncoming vehicle had suddenly turned towards the right side without any indication
\nor signal. On account of this, the Motor-cycle bearing Registration No.TMH-2854,
\nhad collided against the Motor-cycle bearing Registration No.TN-58-E-7723, which
\nwas driven by the deceased Mayan and as a result of which, the deceased Mayan
\nwas thrown out of the vehicle and sustained serious injuries. Soon after the
\noccurrence, the deceased was rushed to Madurai Rajaji Hospital and thus he had
\nsuccumbed to injuries on 15.08.2001, during the course of treatment.\n<\/p>\n
\t9.In this regard, the learned counsel for the appellants had adverted to
\nthat the deceased Mayan was not alien to P.W.2 Perumal. As per his evidence, the
\ndeceased Mayan was not known to him ever since from his childhood and therefore
\nthe evidence of P.W.2 withstood the test of cross-examination of the second
\nrespondent.\n<\/p>\n
\t10.The learned counsel for the appellants has also added that since the
\nevidence of P.W.2 had un-ambiguitively proved the accident, as well as the
\nnegligence on the part of the first respondent, who was the rider of the Motor-
\ncycle bearing Registration No.TM-H-2854 at the relevant period, the claims
\nTribunal ought to have believed his evidence without inviting for the crime
\nrecords and awarded the quantum of amount claimed by the Tribunal.\n<\/p>\n
\t11.He has also maintained that the second respondent\/Insurance Company had
\nalso not specifically denied the occurrence and on the other hand, it had
\nadmitted the occurrence and that was why the Insurance Company had come forward
\nto say that at any rate there was contributory negligence on the part of the
\ndeceased. The learned counsel has also canvassed that at least the Tribunal,
\ninstead of adopting the procedure of dismissal of the claim petition, ought to
\nhave considered the candid admission made by the second respondent\/Insurance
\nCompany and awarded the claim.\n<\/p>\n
\t12.The learned counsel has also added further that when the accident has
\nbeen proved by untainted evidence of P.W.2, the crime records such as First
\nInformation Report, Accident Register, Investigation Report are not necessary to
\nprove the accident.\n<\/p>\n
\t13.Further, he would submit that to disprove the evidence of P.W.2, the
\nsecond respondent\/Insurance Company had not let in any contra evidence and it
\nhad also not taken any effective steps to summon the first respondent, who is
\nthe tort feasor in order to put him in the box to disprove the occurrence. But
\nthis has not been done so by the second respondent. All these facts had been
\nomitted to be considered by the claims Tribunal and that was the reason for the
\ndelivery of a wrong Judgment by dismissing the claim petition in toto.\n<\/p>\n
\t14.Besides this, the learned counsel for the appellant has also maintained
\nthat as contemplated under Order 8 Rule 5 of the Code of Civil Procedure, 1908,
\nthere must be specific denial of the accident by the second respondent\/Insurance
\nCompany. Since the Insurance Company had failed to make a specific plea of
\ndenial in his counter, the claims Tribunal ought to have drawn inference in
\nfavour of the claimants. In support of his submissions he has placed reliance
\nupon the decision in Rajasthan State Road Transport Corporation Vs. Pista and
\nOthers reported in 2003 ACJ 1783.\n<\/p>\n
\t15.Further, with regard to the burden of proof of occurrence on the part
\nof the Insurance Company, he would submit that as contemplated under Sections
\n101 to 104 of the Evidence Act, 1872, the second respondent\/Insurance Company
\nalone is having the responsibility to disprove the occurrence by summoning the
\nfirst respondent, who is the rider of the offending vehicle for the purpose of
\ngiving evidence. In this connection, he has placed reliance upon the decision
\nreported in National Insurance Company Limited, Bhavani Vs. A.Saroja and 6
\nothers reported in 2009 (1) CTC 331 (MHC).\n<\/p>\n
\t16.In Natchathiram and two others Vs. Jayasekaran and others reported in
\n1998 (3) MLJ 603, this Court has observed that:\n<\/p>\n
\t“10.The evidence of P.W.3 Janakiraman is the evidence of eye witness and
\nit is cogent and natural. He also spoke how the accident has taken place which
\naccording to him can be safely accepted and that too in the absence of any
\ncontra evidence. Even in the cross-examination, he denied the question that he
\nhas not seen the accident and he was giving false evidence. The mere fact that
\nhe had not given any complaint to the police will not diminish the credibility
\nof the witness to any extent as observed by the Tribunal.”\n<\/p>\n
\t17.The learned counsel for the appellants has also submitted that since
\nP.W.2 had not chosen to file any complaint before the concerned Police Station,
\nhis evidence could not be discarded or disbelieved on that basis. He has also
\nargued that the second respondent\/Insurance Company had also not chosen to
\nsummon the Police records Viz., First Information Report, Sketch, outcome of the
\npolice investigation. Hence, the only evidence available on record to prove the
\nnegligence of the first respondent is the evidence of P.W.2 and as the testimony
\nof P.W.2 being the eye-witness is more probable and acceptable, it should have
\nbeen accepted by the Tribunal instead of dismissing the claim.\n<\/p>\n
\t18.In Pallavan Transport Corporation Vs. Saroj Goyal and others reported
\nin 2003 ACJ 475, the Division Bench of this Court headed by His Lordship
\nHonourable Mr.Justice P.Sathasivam has held that eye-witness to accident did not
\ninform the police but if his evidence is cogent, natural and probable regarding
\nthe manner of accident, it can safely be accepted-Not informing the police did
\nnot diminish the evidence of eyewitness.\n<\/p>\n
\t19.Ex.P.3 is the Post-Mortem Certificate. On a cursory perusal of this
\npeace of documentary evidence it reveals that pertaining to the accident, a case
\nin Crime No.158 of 2001 was registered on 16.08.2001, on the file of the
\nNagamalaipudhukottai Police Station. It also appears that the case in Crime
\nNo.158 of 2001 was investigated and after the completion of the investigation a
\nreferred charge-sheet in R.C.S.No.247 of 2001 was filed before the learned
\nJudicial Magistrate No.VII, Madurai. Hence, it is thus made clear on the basis
\nof Ex.P.3, that a case in Crime No.158 of 2001 was registered on 16.08.2001,
\nfive days after the occurrence i.e., 11.08.2001. It is also pertinent to note
\nhere that the deceased had succumbed to injury on 15.08.2001, while he was on
\ntreatment in the hospital.\n<\/p>\n
\t20.As contemplated under Section 154 of the Code of Criminal Procedure
\nthat:\n<\/p>\n
\t“3.Object of FIR.- The principal object of the First Information Report
\nfrom the point of view of the informant is to set the criminal law in motion and
\nfrom the point of view of the investigating authorities is to obtain information
\nabout the alleged criminal activity so as to be able to take suitable steps to
\ntrace and bring to book the guilty.”\n<\/p>\n
\t21.On coming to the instant case on hand, accident is not disputed, but
\nthe prime question is as to who is the tortfeasor and on whom the negligency is
\nto be fastened. Though the case has been referred and subsequently a referred
\ncharge-sheet was filed, it cannot be concluded that the claimants are not
\nentitled to claim compensation. It is settled proposition of law that the
\nproceedings before the Tribunal are summary in nature based on the material
\nrecords available. Hence the rules of evidence cannot be made applicable to
\nproceedings before the Tribunal.\n<\/p>\n
\t22.As rightly observed by this Court in Shanmugham Vs. Tamil Nadu State
\nTransport Corporation (TNSTC) reported in II (2007) ACC 271, the Tribunal has
\ngot its own power to device its own method of conducting the proceedings. While
\nappreciating the claims, it has got the power to look into the documents as well
\nas the oral evidence and satisfy itself about the bona fides of the claim.\n<\/p>\n
\t23.The learned counsel for the appellants while advancing his argument has
\nalso adverted to that as per the evidence of P.W.2, the first respondent herein,
\nis the real tortfeasor as he had swerved his vehicle towards his right side
\nwithout any indication or signal and hence, there would not be any impediment
\nfor the Tribunal to conclude that on account of negligence on the part of the
\nfirst respondent, the accident was taken place. But this factum has also been
\nomitted to be looked into by the Tribunal.\n<\/p>\n
\t24.In order to substantiate his argument he has placed reliance upon the
\ndecision in Usha Mehra and Others Vs. Naresh Chand and others reported in 1985
\nACJ 752, in this case a single Judge of Delhi High Court has held that the truck
\ndriver turned towards his right without caring to see whether he could get a
\nclear way. Under this circumstance, it was concluded that the truck driver was
\nrash and negligent.\n<\/p>\n
\t25.As discussed earlier, the whole claim of the claimants was dismissed on
\nthe ground of want of criminal records. In this connection, it may be better to
\nrefer to Sub-Rule 3 to Rule 25 of the Tamil Nadu Motor Vehicles Accident Claims
\nTribunal Rules, 1989 in which it has been stated:\n<\/p>\n
\t“25(3).The claims Tribunal shall obtain whatever information necessary
\nfrom the police, medical or other authorities and proceed to award the claim
\nwhether the parties who were given notice appear or not on the appointed date.”\n<\/p>\n
\t26.Sub-Rule 4 to 25 says that:\n<\/p>\n
\t“25(4).The claims Tribunal shall proceed towards the claim on the basis
\nof-\n<\/p>\n
\ti)Registration Certificate of the motor vehicle involved in the accident;\n<\/p>\n
\tii)Insurance Certificate or policy relating to the Insurance of the motor
\nvehicle against third party risks;\n<\/p>\n
\tiii)Copy of the First Information Report;\n<\/p>\n
\tiv)Post-mortem certificate or certificate of injury as the case may be
\nfrom the medical officer;\n<\/p>\n
\tv)The nature of the treatment given by the medical officer who has
\nexamined the victim.”\n<\/p>\n
\t27.Apparently Rule 25 Sub-Rule 3 and 4 have also not been followed by the
\nTamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989.\n<\/p>\n
\t28.Sub-section 6 to 158 reads as follows:\n<\/p>\n
\t“As soon as any information regarding any accident involving death or
\nbodily injury to any person is recorded or a report under this Section is
\ncompleted by a police officer, the officer in charge of the police station shall
\nforward a copy of the same within thirty days from the date of recording of
\ninformation or, as the case may be, on completion of such report to the claims
\nTribunal having jurisdiction and a copy thereof to the concerned insurer, and
\nwhere a copy is made available to the owner, he shall also within thirty days of
\nreceipt of such report, forward the same to such Claims Tribunal and Insurer.”\n<\/p>\n
Keeping in view of these facts, it is very strange to note that the claims
\nTribunal has dismissed the claim for want of the criminal court records.\n<\/p>\n
\t29.On the other hand, the learned counsel for the respondent has submitted
\nthat though the occurrence was taken place on 11.08.2001, neither the copy of
\nthe accident register nor the discharge summary was filed by the claimants and
\nhence the claims Tribunal has rightly dismissed the claim of the appellants on
\nthe basis of the materials available on record. This portion of argument
\nadvanced by the learned counsel for the respondent is not able to be
\ncountenanced.\n<\/p>\n
\t30.Having regard to the submissions made on behalf of both sides and on a
\ncareful analysation of the materials available on record, this Court is of firm
\nview that the appeal is deserved to be allowed and the claim petition in
\nM.C.O.P.No.1529 of 2003 has necessarily to be remitted back to the Tribunal to
\ndispose the claim of the claimants afresh on all issues.\n<\/p>\n
\t31.In Bimlesh and others Vs. New India Assurance Company Limited reported
\nin (2010) 8 MLJ 1067 (SC), a Division Bench of the Supreme Court of India headed
\nby Honourable Mr.Justice Aftab Alam has held that:\n<\/p>\n
\t“The claims Tribunal is required to dispose of all issues one way or the
\nother in one go while deciding the claim application. The objection raised by
\nthe Insurance Company about maintainability of claim petition is intricately
\nconnected with its liability which in the facts and circumstances of the case is
\ndependent on determination of the effect of the additional premium paid by the
\ninsured to cover the risk of the driver and other terms of the policy including
\nterms of the policy contained in para 5. Since all issues (points for
\ndetermination) are required to be considered by the claims Tribunal together in
\nlight of the evidence that may be let in by the parties and not in piecemeal, we
\ndo not think it proper to consider the rival contentions on merits at this
\nstage. Suffice it to say that matter needs to be sent back to the claims
\nTribunal.”\n<\/p>\n
\t32.In the light of the observations made above as discussed in the
\nforegoing paragraph, the claim in M.C.O.P.No.1529 of 2003, is deemed fit to be
\nremitted back to the Tribunal for fresh disposal.\n<\/p>\n
\t33.In the result, the appeal is allowed. The award dated 05.02.2008 and
\nmade in M.C.O.P.No.1529 of 2003, on the file of the Motor Accident Claims
\nTribunal (First Additional District Judge), Madurai is set aside. The claim
\npetition in M.C.O.P.No.1529 of 2003, is remitted back to the Tribunal for fresh
\ndisposal on all issues, after giving sufficient opportunities to the parties
\nconcerned to adduce additional oral or documentary evidences (if they so
\ndesire). The claims Tribunal is also directed to obtain necessary crime records
\nViz., First Information Report, Accident Register, Motor Vehicles Inspector’s
\nReport and the investigation report, referred charge-sheet either from the
\nlearned Judicial Magistrate No.VII, Madurai or from the Nagamalaipudhukottai
\nPolice Station and further directed to dispose the claim petition on merits
\nwithout getting influenced on the observations made by this Court in this
\nJudgement. The learned First Additional District Judge, Madurai is also directed
\nto dispose the case within a stipulated period of three months under the
\nintimation of this Court. No costs.\n<\/p>\n
ps<\/p>\n
To<\/p>\n
\tThe First Additional District Judge,
\n\tMadurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Ganeshwari vs N.Thangaraj on 2 February, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02\/02\/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.732 of 2010 1.M.Ganeshwari 2.M.Maheswari (Minor) 3.Prashand (Minor) 4.Madhusuthanan (Minor) 5.Karuppayeeammal 6.Mayandi Thevar .. Appellants\/Claimants (The minor petitioners 2 to 4 are represented through their mother, next friend and guardian […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-44858","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Ganeshwari vs N.Thangaraj on 2 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-ganeshwari-vs-n-thangaraj-on-2-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Ganeshwari vs N.Thangaraj on 2 February, 2011 - 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